Command Responsibility

Human Rights First today issued Command’s Responsibility: Detainee Deaths in US Custody in Iraq and Afghanistan. The report examines how many detainees have died in U.S. custody, including the circumstances of their deaths, and the consequences (or lack thereof) for those involved. The report identifies systemic problems surrounding these deaths, notably inadequate training and guidance, command interference, an egregious failures in investigation and prosecute.

Since August 2002, nearly 100 detainees have died while in the hands of U.S. officials in the global ‘war on terror’. According to the U.S. military’s own classifications, 34 of these cases are suspected or confirmed homicides; Human Rights First has identified another 11 in which the facts suggest death as a result of physical abuse or harsh conditions of detention. In close to half the deaths Human Rights First surveyed, the cause of death remains officially undetermined or unannounced. Overall, eight people in U.S. custody were tortured to death.

…

Among our key findings:

 Commanders have failed to report deaths of detainees in the custody of their command, reported the deaths only after a period of days and sometimes weeks, or actively interfered in efforts to pursue investigations;

 Investigators have failed to interview key witnesses, collect useable evidence, or maintain evidence that could be used for any subsequent prosecution;

 Record keeping has been inadequate, further undermining chances for effective investigation or appropriate prosecution;

 Overbroad classification of information and other investigation restrictions have left CIA and Special Forces essentially immune from accountability;

 Agencies have failed to disclose critical information, including the cause or circumstance of death, in close to half the cases examined;

 Effective punishment has been too little and too late.

Command Responsibility is the military doctrine that a “military commander has complete and overall responsibility for all activities within his unit. He alone is responsible for everything his unit does or does not do.” This command responsibility does not, however, extend to criminal responsibility unless the commander knowingly participates in the criminal acts of his men or knowingly fails to intervene and prevent the criminal acts of his men when he had the ability to do so.

In the case of the mistreatment of prisoners, the evidence is mounting of direction from the top, followed by coverup. Meanwhile, the greatest punishment meted out to date to any of soldiers who have been prosecuted is….five months in prison.

(If I’m right that this report does not cover either Guantanamo or secret CIA prisons outside Iraq and Afghanistan, then there are likely more deaths waiting to be entered on the ledger.)

Perhaps he would volunteer for an empirical test to determine whether torture is a useful and morally acceptable means of interrogation?

In the test I propose Prof Dershowitz would be subjected to the interrogation procedures authorized by Mr Rumsfeld. Unlike the victims of the interrogations authorized by Bush/Cheney Prof Dershowitz would have the option of stopping the interrogation at any point in time by conceeding that the techniques used were immoral. It could then be concluded that torture is an ineffective interrogation technique as the victims will say anything to avoid further torture.

Talking about command responsibility and John Yoo – from the memo written by Navy General Counsel Alberto Mora to the Church Commission in 2004 (pg. 19):

( )

6 Feb 03

OGC Deputy General Counsel Bill Molzahn and I met in my office with OLC Deputy Director John Yoo. The principal author of the OLC Memo, Mr. Yoo glibly defended the provisions of his memo, but it was a defense of provisions that I regarded as erroneous. Asked whether the President could order the application of torture, Mr. Yoo responded, Yes. When I questioned this, he stated that his job was to state what the law was, and also stated that my contrary view represented an expression of legal policy that perhaps the administration may wish to discuss and adopt, but was not the law. I asked: Where can I have that discussion? His response: I dont know. Maybe here in the Pentagon?